Jinjin Development Co., Ltd. (Law Firm Jinjin, Attorney Yellow-in, Counsel for the plaintiff-appellant)

Defendant (Law Firm LLC, Attorneys Choi Sung-sung et al., Counsel for the defendant-appellant)

December 4, 2013

1. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 156,619,958 won and 64,043,405 won among them, 27 March 27, 2012, 92,576,553 won with 20% interest per annum from October 24, 2012 to the date of full payment.

2. The defendant-Counterclaim plaintiff's counterclaim is dismissed.

3. The costs of lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) in total, with the principal lawsuit and counterclaim.

4. Paragraph 1 can be provisionally executed.

The main office is as set forth in Paragraph (1).

Counterclaim: Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) shall deliver to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) the money calculated in proportion to KRW 35,36,37,38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 56, 56, 35, and 93 square meters for KRW 68.93 square meters per annum from the following day to the date on which delivery of the building is completed; KRW 1,36,38,960 per annum from September 16, 2013 to the date on which delivery of the building is completed; and the Plaintiff shall pay to the Defendant the money calculated in proportion to KRW 1,46,30,361,37,294,364,27,256, 297, 297.

1. Basic facts

A. Nonparty 2, along with Nonparty 1, his father, decided to newly construct a building listed in the separate sheet (hereinafter “instant building”), which is an aggregate building, on the ground ( Address 1 omitted), ( Address 2 omitted), and ( Address 3 omitted), which he owned by himself. On or around March 17, 1995, established the development of ○○○○○ for the pertinent business for the said business, and followed the construction and sale of the instant building after having completed the business registration with Nonparty 2 and one representative. On or around July 8, 2005, the instant building was completed with the approval for use and completed the registration for use on or after July 8, 2005, Nonparty 1 (OOE) and Nonparty 2 completed the registration for division by floor (hereinafter “the instant building”). On July 22, 2005, the portion of the instant building, which was a part of the commercial building, the registration for ownership preservation of which was completed.

B. Meanwhile, at the time of the completion of the instant building, Nonparty 2 made the instant management rules on the instant building on behalf of ○○ Development (hereinafter “instant management rules”). The main contents of the instant management rules are as follows. At the time Nonparty 2 and Nonparty 1 (In the case, Nonparty 2 and Nonparty 1) shared 71.6303% of the divided ownership of the instant building, including the instant commercial building parts.

(2) The management body may establish, modify or abolish the management rules necessary for the management of the building in question on behalf of the sectional owners who have divided ownership of the building in question and of the site and facilities annexed thereto under Section 9 (1). The management body shall appoint and dismiss the manager in accordance with these rules. (2) The first manager shall be appointed as the manager for the repair of defects and efficient management and operation thereof. (4) The management office of the building in question shall, in principle, have the authority and duties to do the following acts: (1) The manager shall have the first sectional owners who have divided ownership and the first sectional owners who have divided ownership of the building in question; (2) the amount and expenses to be borne by each sectional owner for the management of the building in question and the site and facilities annexed thereto shall be collected for at least 10 years; and (3) the amount and expenses to be borne by the manager for the management of the building in question and for the first time after the expiration of his/her term of office; and (3) the manager shall be deemed to have paid the charges for the management of the building in arrears and charges for the first time.

C. Since July 14, 2005, ○ Development commenced with the written delegation of voting rights regarding the selection of management service company and the enactment of management rules from the sectional owners of the instant building from the sectional owners of the instant building. On August 1, 2005, the sectional ownership shares agreed to the instant management rules exceed 80%, and on February 1, 2006, the number of sectional owners who agreed to the instant management rules exceeds 80% with the consent of 50 out of 62 sectional owners of the instant building at the time of Nonparty 1 and Nonparty 2, including Nonparty 2.

D. From around that time, Nonparty 2 was the representative manager of the management body of the instant building. Nonparty 2’s representative Nonparty 3, on behalf of the management body of the instant building, concluded a comprehensive service contract with the Plaintiff, on behalf of the Plaintiff from July 20, 2006 to July 19, 201, on behalf of the management body of the instant building, for which the term of the contract is from July 20, 2006 to the management body of the instant building was from July 20, 201, and the contract was extended on July 20, 201 to July 19, 201 (hereinafter “instant management service contract”). According to the instant management service contract, the Plaintiff was entrusted with all matters concerning the management fees, various charges and expenses, imposition, collection, and operation of the instant building (Article 2 subparag. 2 of the contract), and provided the sectional owner, the lessee’s office (Article 8(1) and the lessee’s management expenses, etc.).

E. After the conclusion of the instant management service contract, the Plaintiff used part 70.62 square meters of the five floors of the instant building as a management office, and used the instant building as a management office around May 2007, the Plaintiff relocated the management office room to a part of the section for exclusive use on the third floor of the instant building (hereinafter “the third floor management office part of the instant building”), and around that time, attached drawings 19, 20, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 19, and 27.68 square meters of the instant building, which were linked in order to each point of the three floors of the instant building, and kept the entrance and exit of the Plaintiff as an internal entrance of the instant building (hereinafter “three floors of the instant building”).

F. Meanwhile, on May 6, 2010, the non-party 1 (the non-party 1 (the counter-party 1) died, and the defendant, who was the children of the non-party 1 (the counter-party 1), completed the registration of ownership transfer on the part of the non-party 1 (the counter-party 1)'s share of the commercial building of this case on July 2, 2010 due to the legacy of May 6, 2010.

G. After that, on April 12, 201, the Defendant and Nonparty 2 leased part of three floors of the instant building, including the part concerning the management office of the third floor of the instant building, to Hyundai Securities Co., Ltd., and as at the time of April 2011, the Plaintiff transferred the part concerning the management office of the instant building, which was linked in sequence 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 56, and 35 square meters (hereinafter “the part concerning the management office of the instant building”) among the six floors of the instant building, to the management office of the instant building.

H. Meanwhile, among the commercial buildings in this case, the portion of the building in this case, which was not leased, is set forth in 1st basements 1, 1, 2nd 1, 1, 1, 3rd 1, 4 and 5nd 1st 6th 1st 1st 1st 201 and 1/2 from among the management expenses incurred every month after October 201 in relation to the part, is as follows. While the Plaintiff notified the Defendant of the payment of each management expenses since November 1, 201, the Defendant did not pay the management expenses to the Plaintiff.

Management expenses at the time of the occurrence of the Table contained in the main sentence of October 11, 201, 11,026, 407, 12, 930, 121, 13, 119, 684, 11, 11, 541, 469, 11,802, 287, 2012, 12, 262, 268, 207, 12, 12, 268, 12, 12, 97, 201, 119, 684, 11, 784, 84, 846, 11, 469, 469;

I. As of the date of closing argument of this case, the warehouse part of the third floor of the building of this case is in a state where glass walls partitions and entrance doors are installed, and the part of the management office part of the sixth floor of the building of this case is used by the plaintiff as the management office.

[Ground of recognition] The fact that there has been no dispute, Gap's 1 through 35 evidence, Eul's 1 through 19 evidence (including each number; hereinafter the same shall apply), and the purport of whole pleadings

2. Judgment on the plaintiff's main claim

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff, a manager of the instant building through the instant management services agreement, was granted all the authority to collect and operate the management expenses of the instant building from Nonparty 2, who was the owner of the instant building. Therefore, the Plaintiff has the right to claim the management expenses of the instant building against the sectional owner of the instant building.

Meanwhile, the Defendant is the 1/2 share owner of the instant commercial building, and is obligated to pay 1/2 of the management expenses incurred in the instant commercial building portion not leased from October 201 to September 2012. However, the Defendant did not pay such expenses.

Therefore, the defendant is obligated to pay to the plaintiff the total sum of 156,619,958 won for the management expenses and unpaid management expenses incurred from October 201 to September 2012.

2) The defendant's assertion

The plaintiff is merely a controlled entity that performs management affairs of the building of this case entrusted by the non-party 2, and thus, it is only authorized to collect management expenses on behalf of the manager, and cannot be deemed to have the right to claim management expenses against the sectional owner. Therefore, the plaintiff's claim for management expenses against the defendant is without merit.

Even if the plaintiff has the right to claim management expenses, the criteria for calculating the management expenses of the building of this case cannot be recognized, and in particular, since the 4 and 5 floors of the building of this case are not used for provisional disposition execution, the management expenses for those parts should be excluded.

Furthermore, the Plaintiff, a section of exclusive ownership owned by the Defendant 1/2 and part of the 3th floor of the instant building from May 2007 to July 2010, and from August 2010 to April 2012, the Plaintiff occupied and used part of the 6th floor of the instant building without permission, thereby gaining profit equivalent to the rent, and suffered loss equivalent to the Defendant. As such, the Defendant, upon delivery of a duplicate of the reply in the instant case, offset the Plaintiff’s claim for return of unjust enrichment against the Plaintiff against the Defendant’s management fee claim against the Defendant on an equal amount.

B. Determination on the cause of the claim

1) According to Article 17 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act"), each co-owner of an aggregate building bears the management expenses for common areas and other obligations according to the ratio of his/her share, unless otherwise stipulated by the regulations. According to Articles 23 and 24 of the Act on the Ownership and Management of Aggregate Buildings, if the sectional ownership relationship of a building is established with respect to the building, all sectional owners are divided owners and the management body is established for the purpose of the management of the building site and its appurtenant facilities. If there are more than 10 sectional owners, the manager must appoint the manager. According to Article 25 (1) 2 and 3 of the Act on the Ownership and Management of Aggregate Buildings (hereinafter "the Act"), the manager has the authority to claim and receive the share and expenses for the management of the management body to each sectional owner and to manage the amount thereof, and to claim the management expenses for the aggregate building as the representative of the management body, and to claim the management body as the sectional owner's right to claim the management expenses.

2) In light of the above legal principles, according to the management rules of this case that was duly established upon agreement of at least 4/5 of sectional owners and voting rights around February 1, 2006, Nonparty 2 was appointed as the first manager of the building management body of this case as the owner of the largest sectional ownership of the building of this case at the time, and held the right to claim for the management expenses of the building of this case. Furthermore, in full view of the management rules of this case and management services contract of this case, the collection status of the plaintiff's management expenses, and the transaction situation where most of the management of the aggregate buildings were conducted through controlled entities, it is reasonable to deem that the plaintiff was granted the right to perform the lawsuit on the management expenses claim by Nonparty 2, the manager of the building of this case.

3) Meanwhile, this constitutes a so-called voluntary lawsuit trust, and such voluntary lawsuit trust is permitted when there is no possibility of undermining the principle of representation by attorney or the prohibition of the litigation trust under the Trust Act, and there is a reasonable need to recognize it (see Supreme Court Decisions 93Meu1815, Feb. 14, 1984; 2004Da20807, Aug. 24, 2006; 2004Da20807, Aug. 24, 2006). Considering the contents of the management service contract of this case recognized earlier and the necessity of efficient management of aggregate buildings, it is difficult to deem that the voluntary lawsuit trust of this case is likely to escape the principle of litigation trust under the Trust Act or the principle of representation by attorney or the prohibition of litigation trust under the Trust Act, and it is reasonable to deem that there is a reasonable need to recognize it. Accordingly, the Plaintiff has the authority to claim management expenses related to the portion of the building of this case to the Defendant, who is the owner of 1/2 equity in the commercial area of this case.

C. Judgment on the defendant's argument

1) As to this, the defendant asserts to the effect that management fees for the portion of the fourth and fifth floors of the building in this case which cannot be actually used due to provisional disposition should be excluded from the calculation of management fees. However, under Article 30 of the management rules of this case, the sectional owner bears the obligation to pay management fees. Even if the sectional ownership is not actually used, general management expenses irrelevant to the actual use and management fees for the section for common use that are borne proportionally by the sectional owners are not exempted. Thus, the defendant's assertion on this part is rejected.

2) In addition, the defendant asserts that the claim for return of unjust enrichment against the plaintiff is offset against the plaintiff's claim for management expenses against the defendant. Thus, it is reasonable to view that the plaintiff's right to claim management expenses of the building of this case is not transferred to the defendant itself by the management body or manager of the building of this case, the subject to the right to claim management expenses, but it is recognized as having been granted the right to claim management expenses from the manager of the building of this case under the management service contract of this case and exercising the right to claim management expenses. Thus, even if the defendant's claim for return of unjust enrichment against the plaintiff exists as the defendant's assertion, the defendant's claim for return of unjust enrichment against the plaintiff cannot be asserted against the plaintiff's management expenses by asserting the reasons against the management body or manager of the building of this case, the subject of the right to claim management expenses, which is not the subject of the right to claim management expenses. Therefore, this part of the defendant's assertion is without merit.

(d) Conclusion

On the other hand, the management expenses and late fees that the plaintiff seeks against the defendant are as follows.

1,026,407 26,35,40 through 2. 2.10, 201, 26,407, 26,352,180 on October 1, 201 through 2, 201, aggregate of KRW 24,043,405 on the date of delivery of a copy of the complaint ( March 26, 2012) 2,930,121 (total 23,956, 528, 10. 26. 29, 206, 27. 296, 27. 16. 25, 205, aggregate of KRW 27. 29,57, 296, 201, 296, 27. 16. 25, 205, 296, 2015, 16. 16. 25

Therefore, as requested by the Plaintiff, the Defendant is obligated to pay to the Plaintiff 156,619,958 won as above and 64,043,405 won as from March 27, 2012, which is the day following the delivery date of a copy of the complaint of this case, and to pay the remainder 92,576,553 won as from October 24, 2012, which is the day following the delivery date of a copy of the application for modification of the purport of this case and the cause of the claim of this case from October 24, 2012 to the day of full payment. Accordingly, the Plaintiff’s claim of the principal suit is with merit.

3. Judgment on the defendant's counterclaim

A. Determination as to the claim for return of unjust enrichment with respect to the management office part of the third floor of the instant building

1) The parties' assertion

A) Defendant’s assertion

The Plaintiff used part of 5th floor of the instant building as a management office. Nonparty 2 leased 4 and 5th floor of the instant building to Non-Party 1 (non-Party 1) without consultation with Non-Party 1 (non-Party 2). The Plaintiff transferred the Plaintiff’s management office to 3rd floor of the instant building, which is a section for exclusive use, without the consent of Non-Party 1 (non-Party 1). From May 2007, the Plaintiff did not have the duty of 5, 6, 7, 8, and 5th unit of 6th floor of the instant building, which was connected in order to 66th floor management office of the instant building, from around July 2010 to about 38th unit of the instant building. However, the Plaintiff did not have the duty of 1/2nd unit of the instant building to 30th unit of the instant building, which is a co-owner 20th unit of the instant building, to 30th unit of the instant building.

B) The plaintiff's assertion

From the time of the completion of the instant building around July 2005, the Plaintiff used part of the 5th floor of the instant building, which is the section for common use, as the management office, and managed the building. Nonparty 1 (the Nonparty 1) and Nonparty 2, around December 23, 2006, jointly leased the 4 and 5th floor of the instant building to the Crising Domine, requested the Plaintiff to relocate the management office to 3th floor and use it free of charge. Accordingly, the Plaintiff transferred the management office to 3th floor around May 2007. Accordingly, at the time, the Plaintiff had the right to possess the part of the management office of the third floor of the instant building. Accordingly, the claim for unjust enrichment against this part is without merit.

(ii) the facts of recognition

In addition to the facts recognized earlier, the following facts are recognized in full view of the respective descriptions and arguments stated in Gap's evidence Nos. 8, 9, 14, 15, 16, 17, 18, 23, 27, 31, and Eul's evidence Nos. 8 through 17.

① Around December 11, 1994, Nonparty 1 (OE) and Nonparty 2 entered into a contract for the construction of the instant building with two mountain Construction Co., Ltd. (hereinafter referred to as “dusan Construction”), and the construction was interrupted on the grounds that the sale rate was low during the construction of the instant building, and thereafter, a lawsuit was brought to seek compensation and loans, etc. for delay after the completion of the construction. The Seoul High Court decided on June 12, 2003 from Seoul High Court to jointly manage the apartment sale business and the commercial building lease business of the instant building on behalf of Nonparty 1 (OE) and Nonparty 2, and the usual sale price of the apartment is KRW 7.85 million, and if the sale price exceeds KRW 7.55,00,00,000,000,000 were acquired as sales commission, and the construction price shall be paid with the proceeds of the sale in lots and the sales price shall be paid with the proceeds of the sale in lots and the sales price shall be adjusted to 7.61 million (OE.).

② 위 조정에 따라 이 사건 건물 상가 부분의 임대업무를 주관할 권한이 있었던 두산건설은 주식회사 로텝(이하 ‘로텝’이라 한다)을 통하여 그 임대업무를 수행하였고, 로텝의 분양팀은 2004. 3월경부터 상가 임차를 원하는 사람들을 모집하여 임대차기간, 보증금, 차임 등을 협의한 후, △△△△△△빌딩 11층에 있는 ○○개발 사무실에 동행하여, 임대인인 소외 1(대판:소외인), 소외 2와 사이에 임대차계약을 체결하도록 하였다.

③ 로텝의 분양팀장인 소외 4가 2004. 3.부터 위와 같이 상가 임대에 관여하는 동안, 임대차계약 체결 시 임대인란에는 일반적으로 사업자등록 대표자란의 기재와 같이 ‘소외 2외 1인’이라고 기재하고 소외 2의 도장을 날인하였고, 특별한 요구가 있는 경우에는 ‘소외 2, 소외 1(대판:소외인)’이라고 기재하고 두 사람의 도장을 모두 날인하였는데, 그러한 날인은 소외 3이 맡아서 처리하였다,

④ Nonparty 1 (Person in Small and Medium Business) was well aware of the situation of the lease of such commercial building, and confirmed the lease agreement made under the joint names of “Nonindicted 2” or “Nonindicted 1 (Person in Small and Medium Business (Person in Small and Medium Business) and Nonparty 2,” and did not raise any objection thereto.

⑤ Meanwhile, in settling the construction cost of the building in this case, Nonparty 1 (OB) and Nonparty 2 did not pay KRW 835,437,112 up to December 1, 2006, which was the due date for the payment of the agreed construction cost. On December 1, 2006, two mountain construction sent to Nonparty 2 a certification of the content that it would take legal measures without paying the construction cost by December 8, 2006. On December 2, 2006, a certificate of the same content was sent to Nonparty 1 (OB).

6) The non-party 3 received the certificate of content delivered to the non-party 1 (the non-party 5) through the non-party 5, and the non-party 3 asked the non-party 4 to promptly settle the sales price of the two mountain construction through the commercial lease, and the non-party 3 requested the non-party 4 to lease the 4 and the 5th floor of the building in this case.

7) After that, on December 23, 2006, Nonparty 3, on behalf of Nonparty 1 (the Nonparty 1) and Nonparty 2, on behalf of Nonparty 4, leased the instant building at KRW 1 billion, designating and renting the instant building 4 and 5 floors as the lease deposit. On January 20, 207, Nonparty 4, from Nonparty 4, told Nonparty 1 (the Nonparty 1: the Nonparty 2) and Nonparty 2, wanting to affix their seals on the lease contract from Nonparty 4, and then Nonparty 1 (the Nonparty 1: the Nonparty 2) and Nonparty 2 affixed their seals on the lessor’s lease contract column at that time.

⑧ 소외 1(대판:소외인)은 로텝의 분양사무실에 들러 임대 상황을 확인하면서 임대를 독촉해 왔고, 2006. 12. 초순경에는 소외 4에게 빨리 분양을 해야 한다며 독촉의 강도를 높이다가 소외 3으로부터 내용증명에 관한 이야기를 들은 다음부터 크리스탈 부페와의 임대차계약이 체결된 2006. 12. 23.까지 사이에는 특별한 독촉을 하지 않았다.

9) The lease deposit amount of KRW 800,000,000, which Nonparty 3 received from the CD Hau Puu Pu Puon Puon to December 28, 2006, was fully used with the payment of KRW 823,305,279,000,000 for the construction payment of KRW 823,30,305,279

(10) Around the time when the 4 and 5th floor of the instant building were leased to the Crison Dop, part of 70.62 square meters among the instant building was managed by the Plaintiff while using it as the management office at the time. However, under the management and management rules of the instant building, the management office was formed within the instant building, and the Plaintiff’s management office was determined to be provided by the sectional owner and the lessee. Furthermore, the area of the 5th floor of the instant building was the section for exclusive use 1,424.59 square meters and the section for common use 218.48 square meters, and the section for exclusive use of 1,516.03 square meters and section for common use of 1,516.03 square meters and section for common use of 127.04 square meters and section for common use of 127.62 square meters and section for common use of 5th floor of the instant building.

① Around January 15, 2007, in order to use the 4 and 5th floor of the instant building as a wedding hall, a contract for interior works was entered into between the construction cost of 1.14 million won and the Nowon Blusium Co., Ltd. during the construction period from January 15, 2007 to April 14, 2007. After the commencement of the construction, the Plaintiff transferred the management office to the third floor management office of the instant building on May 2007.

(12) On February 7, 2007, the non-party 1 (the non-party 1) did not grant the right of representation to the non-party 3 on the conclusion of the lease agreement of the 4,5th floor of the building of this case, but the non-party 2 and the non-party 3 conspired with the non-party 3 to enter into the lease agreement by forging the contract under the name of the non-party 1 (the non-party 1 (the non-party 3) and then filed an application for provisional injunction against the non-party 4,5th floor of the building of this case with the Seoul Central District Court. On April 9, 2007, the construction was suspended.

(13) Then, around August 2007, Nonparty 1 (the Nonparty 1) sent to the Plaintiff a certificate stating that the instant management services contract is null and void, and that the Plaintiff is not a legally appointed service company, and around that time, convened a meeting of the management body of the instant building. Once Nonparty 1 (the Nonparty 1) called the management body of the building of this case, presentsung Korea Co., Ltd., a controlled entity selected at the meeting of the management body convened as the main axis, filed an application against the Plaintiff for a provisional injunction against interference with its business as Seoul Central District Court 2007Kahap3461, but the above court dismissed the application on the ground that the instant management services contract between the management body of this case and the Plaintiff was valid. Accordingly, the appeal was dismissed, even though the Seoul High Court 2008Ra750, this appeal was dismissed.

(44) In addition, on January 19, 2008, Nonparty 1 (the Nonparty 1) filed a complaint with Nonparty 2 and Nonparty 3 on charges of forging private documents with the Seoul Central District Prosecutors' Office. Nonparty 2 and Nonparty 3 was prosecuted under the name of the crime, such as forging private documents, and the Seoul Central District Court 2008Kahap402, 467 (Joint) and 640 (Joint) but the above court was affirmed on December 19, 2006 on the ground that Nonparty 1 (the Nonparty 1: the Nonparty 3) delegated Nonparty 3 and Nonparty 2 with the execution of the lease contract of the 4 and 5th floor of this case to Nonparty 3 and Nonparty 2 on December 19, 2008 on the grounds that it is reasonable to view that Nonparty 1 (the Nonparty 1) was delegated to Nonparty 3 and Nonparty 2 on December 4, 2009, the appellate court (Seoul High Court 2009No4364, Apr. 26, 2019).

(iii) the board;

According to the above facts, it is reasonable to view that the non-party 1 (the non-party 2) and the non-party 2 delegated the right to lease the 4,5th floor of the building of this case to the non-party 3 on December 12, 2006, and the non-party 3 leased the 4,5th floor of the building of this case to the non-party 3 on December 23, 2006, according to its delegation. Meanwhile, according to the management rules and management services contract of this case, the plaintiff occupied the 70.62 square meters corresponding to the section for common use among the 5th floor of the building of this case as the management office, and had a legitimate authority to use the 70.62 square meters of the building of this case as the management office of this case at the time of the above lease (the non-party 1, the non-party 2, who already occupied and used the building of this case, to the non-party 4 and the non-party 1, the non-party 1, the joint-party 1, the management office building of this case.

Therefore, the plaintiff was entitled to possess the third floor management office of the building of this case. Thus, the defendant's claim for this part is without merit without examining it.

B. Determination as to return of unjust enrichment and request for extradition regarding the part of the sixth floor management office of the instant building

1) The parties' assertion

A) Defendant’s assertion

Since August 2010, the Plaintiff began to occupy the 6th floor management office of the instant building, which is a section for exclusive use, without permission from around August 201, and the Defendant and Nonparty 2 leased the part of the 3rd floor management office of the instant building to the 6th floor management office of the instant building on or around April 2011, and occupied and used the said part until now. However, the Defendant did not agree to occupy the 6th floor management office of the instant building, and there were considerable common areas to be used as the 6th floor management office of the instant building without permission from the 6th floor management office of the instant building to the 15th unit management office of the instant building, and without permission from the 10th unit management office of the instant building to the 16th unit management office of the instant building, the Defendant, the owner of the 1/2nd floor management office of the instant 6th floor to the 16th unit management office of the instant building, and the 16th unit management office of the instant building to the 13th unit management office of the instant building.

B) The plaintiff's assertion

The Plaintiff used the part of the management office of the third floor of the instant building as the management office. However, Nonparty 2 and the Defendant leased that part to Hyundai Securities and made it impossible to use the part of the instant building that was used as the management office. Since sales office was inevitable at the time, the fiveth floor of the instant building, which was used as the management office, was relocated to the management office of the sixth floor of the instant building. The Defendant used that part of the instant building as the management office at the time of leasing the third floor of the instant building to Hyundai Securities, and did not raise any issue by November 14, 201 with the knowledge that the Plaintiff moved to the management office of the 6th floor of the instant building, even though he was well aware of the fact that it was moving to the 6th floor of the management office around April 201, the Plaintiff raised an issue only after November 14, 2011, which was after the Plaintiff claimed for the management fee. Therefore, the Defendant consented to the Plaintiff’s use of that part.

(ii) the board;

A) First, there is no evidence to acknowledge the Defendant’s assertion that the Plaintiff occupied the part of the sixth floor management office of the instant building from August 2010 to April 2011. Therefore, the Defendant’s claim against that part is without merit without need to examine.

B) Furthermore, it is reasonable to view that the Plaintiff, from April 201 to April 201, occupied the part of the management office of the 6th floor of the instant building without permission, and that the Plaintiff had the right to possess the part of the management office of the 3rd floor of the instant building. The Defendant and Nonparty 2 still maintained the management service contract of the instant building that the Plaintiff concluded with the manager even around April 12, 2011 leased the 3rd floor of the instant building. Thus, the Defendant and Nonparty 2, who already occupied and used the 1st floor of the instant building, have the duty to provide the Plaintiff with an alternative space for the management office of the 1st floor of the instant building. Further, in light of the facts acknowledged earlier, the Plaintiff’s duty to manage office of the 10th floor of the instant building, which was known to the Plaintiff as the management office of the 16th floor of the instant building, was not the management office of the 14th floor of the instant building, and the part that the Plaintiff requested to provide the 10th floor of the instant building.

Furthermore, even if the Defendant requested the Plaintiff on November 14, 201 to transfer the part of the 6th floor management office of the instant building to the Plaintiff, the Plaintiff expressed his/her intent to withdraw consent regarding the possession of the part of the 6th floor management office of the instant building, the following circumstances acknowledged by comprehensively considering the facts and the purport of the entire pleadings, i.e., as long as the Plaintiff has the right to request the Defendant to provide the space of the 6th floor management office of the instant building, it is difficult to deem that the Defendant occupied the part of the 6th floor management office of the instant building until the Defendant provided a substitute space and used it as the management office of the instant building. It is difficult to deem that there is substantial loss. If the Defendant permitted the Plaintiff to claim return and delivery of unjust enrichment after the withdrawal of the consent, the Plaintiff can claim damages equivalent to the same amount on the ground that the Defendant, who is obligated to provide the 6th floor management office space of the instant building, has failed to perform his/her duty, and the Plaintiff still demanded the Plaintiff to provide the substitute management office space of the instant building without the Plaintiff’s consent.

Therefore, the defendant's claim on the premise that the plaintiff did not have the right to possess the six-story management office of the building of this case is without merit.

C. Determination as to return of unjust enrichment and request for extradition on the third floor warehouse of the instant building

1) The parties' assertion

A) Defendant’s assertion

From June 1, 2007 to September 15, 201, the Plaintiff arbitrarily installed a glass wall partitions and entrance to the third floor warehouse of the instant building, which is a section for exclusive use, such as a small store, without the consent of the Defendant, who is the one-half share owner, and used the inside space as a warehouse that keeps the Plaintiff’s office fixtures, etc., and currently occupies the inside space by neglecting the installation as it is and controlling the entry. Therefore, the Plaintiff is obligated to return the rent equivalent to 1/2 of the rent generated from June 1, 2007 to September 15, 2013 to the Defendant who seeks to deliver the jointly owned property through the act of preserving the 1/2 share of the third floor warehouse of the instant building and to pay the third floor warehouse of the instant building at the rate of 478 and 86 billion won calculated from September 16, 2013 to September 16, 2013.

B) The plaintiff's assertion

The plaintiff, while using part of five floors of the building of this case as the management office and managing the building of this case, the non-party 1 (the non-party 1) and the non-party 2 leased that part to the Dadle Dop Dop on December 23, 2006, and transferred that part to the 3rd floor around May 2007 and used it. However, the area of the 5th floor used as the management office was 70.62 square meters. The part of the 3rd floor management office of this case was merely 32.71 square meters, and it was difficult for the plaintiff to store various office fixtures for the management office of this case. Accordingly, the plaintiff was not able to lease the part of the 3rd floor of this case, which was left without any specific usefulness among the 3rd floor of the building of this case, and the plaintiff temporarily stored the plaintiff's office room and used the part of this case to occupy the building of this case in the form of the warehouse of this case.

2) Determination as to the claim for return of unjust enrichment from June 1, 2007 to April 201

In light of the above facts, the plaintiff used part of the 5th floor of the building in this case as the management office, and managed the building. The non-party 1 (the non-party 2) and the non-party 2 leased the 4 and 5th floor of the building in this case, including that part, to the Dag Dok Dok Dok Dok Dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-dok-do-dok-dok-dok-dok-do-dok-dok-dok-dok-dok-dok-do-dok-dok-dok-dok-dok-dok-dok-dok.

Therefore, from June 1, 2007 to April 1, 201, the defendant's claim for this part on the premise that the plaintiff did not have the right to possess the third floor warehouse of the building of this case is without merit without any need to examine further.

3) Determination as to a claim for return of unjust enrichment and a claim for delivery of a building after May 201

In light of the above facts, Gap's evidence Nos. 32, 33, 34, 35, and Eul evidence Nos. 18 and the purport of the whole pleadings, the plaintiff transferred the management office part of the third floor management office of the building of this case to the sixth floor management office around May 201 while he used the third floor management office of the building of this case as the management office. The office fixtures necessary for the management of the building of this case, which were kept in the third floor warehouse of the building of this case, in the process of its relocation, seems to have been moved to the sixth floor management office. ② The third floor of the building of this case was stored in the part of the plaintiff's warehouse of this case, and it was difficult to view that the part of the building of this case was used in the form of a public warehouse, and it was difficult to view that the plaintiff was currently in possession of the third floor of the building of this case as well as the building of this case to have been used in the form of a 30th floor.

Therefore, since April 201, the plaintiff possessed the third floor warehouse of the building of this case, all of the defendant's claims on this premise are without merit.

4. Conclusion

Therefore, the plaintiff's main claim is justified, and the defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Jeong-sung(Presiding Judge)